5.  The applicant was born in 1985 and lives in Feres, Greece.
6.  The applicant lodged an asylum application in Austria on 5 July 2008. In the course of the interviews that followed, he claimed that his father had been deemed a communist and an infidel in Afghanistan and had been killed by a group of mullahs when the applicant was seven years old. The applicant had then left Afghanistan with his mother and brother and had lived in Pakistan for fifteen years. One of the mullahs had been his father’s brother, who had supported his sibling’s killing as he had wanted to obtain his land. After their mother had died in Pakistan, the applicant and his brother had gone back to Afghanistan to take possession of their father’s land. Their uncle had reminded them of their father’s fate and had sent a group of men to their quarters in the middle of the night, where they had been held and beaten for three days. They had kidnapped the applicant’s brother, who had disappeared and was never seen since. The applicant had been warned again that his life would be in danger if he stayed in the village. The applicant had then left again for Pakistan in November 2007. He had travelled from Pakistan via Iran to Turkey, where he had stayed for six months. With the aid of a trafficker, he had crossed over to Greece by boat, where he had stayed for approximately fifteen days. He had continued to Italy, where he had bought a train ticket to Austria. In Austria, he had been apprehended by police.
7.  With respect to Greece, the applicant told the asylum authorities that he had seen thousands of Afghan refugees in Patras, who had been left to their own devices without any access to food, water, accommodation or even sanitary facilities. There had been no access to asylum proceedings, which was why the applicant had decided not to apply for asylum in Greece. He also explained that he had seen many refugees being abused by police. In this context, the applicant’s State-appointed counsellor referred to a paper by the UNHCR entitled “Position on the return of asylum-seekers to Greece under the Dublin Regulation” dated 15 April 2008 (hereinafter the “UNHCR position paper”) and requested that the Austrian authorities make use of the sovereignty clause of Council Regulation (EC) No 343/2003 (hereinafter “the Dublin Regulation”).
8.  On 22 August 2008 the Federal Asylum Office (Bundesasylamt) rejected the applicant’s asylum application, on the grounds that Greece was responsible for examining it in line with section 5 of the 2005 Asylum Act (Asylgesetz 2005) in conjunction with Article 10 § 1 and Article 18 § 7 of the Dublin Regulation. It also ordered his transfer back to Greece. It found that the applicant would not face any real risk of ill-treatment within the meaning of Article 3 of the Convention upon his return there. The authority, referring to a number of country reports, did not consider the applicant’s observations about Greece credible. It also stated that the UNHCR position paper welcomed Greece’s reform attempts aimed at strengthening its asylum system. It further noted that a working group had been established, including members of the Greek authorities and UNHCR, to tackle the “most burning” problems with the asylum system. Furthermore, the relevant European directives were binding for Greece. Lastly, the Federal Asylum Office referred to a fact-finding mission conducted by the Swedish Migration Board in April 2008 reacting to harsh criticism voiced by various NGOs. The final report of that mission had concluded that there were no humanitarian or other reasons to refrain from returning asylum-seekers to Greece under the Dublin Regulation. In view of the fact that the asylum authorities of the other EU countries had not stopped transferring asylum-seekers back to Greece, the Federal Asylum Office did not consider it necessary to make use of the sovereignty clause in the present case.
9.  On 15 September 2008 the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal as unfounded. It found that an accumulation of proceedings under the sovereignty clause would endanger the “effet utile” principle of Community law. Furthermore, the Dublin Regulation was based on the assumption that all member States were safe countries, and that a deportation to one of them could not constitute a human rights violation. Therefore, arguments against such a deportation would need to be sufficiently substantiated. It further found that in each of his interviews, the applicant had exaggerated his description of the situation in Greece. Referring to the results of the fact-finding mission of the Swedish Migration Board to Greece in April 2008, the court found that there were no deficiencies in the asylum procedure in Greece, as all twenty-six monitored cases had had access to asylum proceedings there. As regards the present case, the Greek authorities had already stated that the applicant would have had access to asylum proceedings once he returned to Greece. Furthermore, as he had never lodged an asylum application in Greece he was in no position to say whether or not he would have had access to support services there. Again referring to the mission report by the Swedish Migration Board, the court found that the level of support available to asylum-seekers in Greece was acceptable. Furthermore, asylum-seekers were allowed to work in Greece. Lastly, there would be no risk of refoulement. In conclusion, the applicant would not be at a real risk of being subjected to treatment contrary to Article 3 upon being returned to Greece.
10.  The applicant was transferred to Greece on 20 October 2008.
11.  On 7 November 2008 the Constitutional Court (Verfassungs­gerichtshof) declined to deal with the applicant’s complaint for lack of any prospect of success.
12.  While in Greece, the applicant reported to his legal representative in Austria that he had been arrested at the airport upon arriving in Athens and detained for three days. After that time he had received a “pink card”, following a very short interview without an interpreter and without being given any legal information. He had moved on to a camp where other Afghan refugees had been living, until it had been destroyed. Subsequently, he had either lived with people who had worked in fields picking crops, or in rooms sharing with twenty other people while searching for work in the cities. He had sometimes been given food or clothes by private individuals, but had received no support from the Greek authorities.
13.  For detailed information on proceedings under the Dublin Regulation, see M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 65-75, ECHR 2011).
14.  Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application must be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine it. When rendering a decision rejecting an application, the authority must specify which State has jurisdiction in the matter.
15.  International documents describing the conditions of detention and reception of asylum-seekers and the asylum procedure in Greece are extensively summarized in the judgment in M.S.S. v. Belgium and Greece (cited above, §§ 159-195). In the paragraphs that follow, reference will be made to the documents cited therein.
16.  A number of pertinent reports on the situation faced by asylum-seekers in Greece have been freely available from as early as 2005 onwards, such as reports by the European Committee for the Prevention of Torture (CPT) published in December 2006 and February 2008 following visits to Greece examining, inter alia, the detention conditions of foreigners in specific holding facilities (ibid., §§ 160 and 163-64).
17.  In October 2007 the German NGO Pro Asyl published a report entitled “The Truth may be bitter but it must be told”, documenting serious human rights abuses against refugees who tried to reach Greece by sea. On 27 February 2008 Amnesty International published a report and recommendations entitled “Greece: no place for asylum-seekers” as regards the conditions of detention for asylum-seekers. In its “Amnesty International Report 2008 – Greece” of 28 May 2008, the NGO stated that “Greece [had] failed to provide asylum to the vast majority who [had] requested it. Migrants [had] suffered ill-treatment, and arbitrary and lengthy detention of asylum-seekers, including children, continued”.
18.  That and similar information was complemented by two UNHCR reports, the first of which was dated November 2007 and entitled “Asylum in the European Union. A study of the Implementation of the Qualification Directive”. In its executive summary, the UNHCR observed that the Greek asylum system failed to grant asylum of any kind and rejected applications in a standardised format, without giving individual reasons, and identifying all of the 305 cases examined as concerning “economic migrants without protection needs”. A review of the files was conducted by the authors of the study, who established that in 294 of the cases examined the files did not contain any of the asylum-seekers’ answers to standard questions asked by the interviewing police officers. Furthermore, there was no information in the files regarding the asylum-seekers’ fears of persecution, and in an overwhelming majority of the cases the interviewing police officer had registered the reasons for departure from the country of origin as “economic”. The authors of the study concluded that in view of the insufficient documentation and reasoning, it was not possible to discern legal practice in Greece.
19.  The UNHCR position paper of 15 April 2008 undeniably welcomed the steps taken by the Greek Government to strengthen its asylum system as required by international and European standards, just as the Austrian authorities had noted in their reasoning. However, it continued by stating:
“26.  In view of EU Member States’ obligation to ensure access to fair and effective asylum procedures, including in cases subject to the Dublin Regulation, UNHCR advises Governments to refrain from returning asylum-seekers to Greece under the Dublin Regulation until further notice. UNHCR recommends that Governments make use of Article 3 (2) of the Dublin Regulation, allowing States to examine an asylum application lodged even if such examination is not its responsibility under the criteria laid down in this Regulation”.
20.  On 7 February 2008 Norway announced that it would be suspending all transfers of asylum-seekers to Greece. However, on 3 September 2008 the Norwegian Prime Minister told the media that Norway would no longer suspend transfers to Greece under the Dublin Regulation on a blanket basis, but rather that an individual assessment of each case would be carried out (reported in the article “Stuck in a Revolving Door” by Human Rights Watch, November 2008, page 25).
21.  On 6 May 2008 the Swedish Migration Board published a report on a delegation’s visit to Greece between 21 and 23 April 2008 (Rapport från besök i Grekland den 21 – 23 april 2008). The report described the increasing challenges faced by the Greek asylum system because of the increasing number of cases it had to deal with in recent years. It referred to problems with the provision of housing for asylum-seekers, and that more often than not they had to arrange housing for themselves. The report concluded by stating that the risk of refoulement was minimal. However, a particular problem had arisen in relation to unaccompanied minors – there was a risk that such asylum-seekers would be placed in a reception unit in Amygdaleza, a closed facility regarded as a radical measure, comparable to placing minors in custody. In the light of the conclusions of the report, the director general’s guidelines of 7 May 2008 (Generaldirektörens riktlinjer avseende tillämpningen av Dublinförordningen i förhållande till Grekland) established that asylum proceedings in Greece were generally acceptable for adults, but that there were problems regarding the reception of unaccompanied minors in relation to the above-mentioned reception facility. The Migration Board therefore decided to maintain its suspension of transfers of unaccompanied minors to Greece.